Title United States v. Jackson
Argued April 4, 2005 Decided July 22, 2005
Subject Fourth Amendment; Legal Analysis
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 4, 2005 Decided July 22, 2005
No. 04-3021
UNITED STATES OF AMERICA,
APPELLEE
v.
TARRY M. JACKSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00328-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Thomas S. Rees, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher and Thomas J. Tourish, Jr.,
Assistant U.S. Attorneys.
2
Before: EDWARDS, ROGERS and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Concurring opinion filed by Circuit Judge EDWARDS.
Dissenting opinion filed by Circuit Judge ROBERTS.
ROGERS, Circuit Judge: This appeal challenges the district
court's denial of a motion to suppress evidence on the ground
that the police lacked probable cause to search the trunk of a car
stopped for a traffic violation. The question before the court is
whether the evidence would have led a "`prudent, reasonable,
cautious police officer' to believe that there was a reasonable
likelihood the trunk contained contraband" or evidence of a
crime. United States v. (Monte) Brown, 374 F.3d 1326, 1328
(D.C. Cir. 2004) (quoting United States v. Davis, 458 F.2d 819,
821 (D.C. Cir. 1972)); see also Illinois v. Gates, 462 U.S. 213,
238 (1983). Upon de novo review, see Ornelas v. United States,
517 U.S. 690, 699 (1996), we hold that the police lacked
probable cause to search the trunk, and accordingly, we reverse
the judgment of conviction.
I.
At approximately 1:00 a.m. on May 4, 2002, United States
Park Police Officers Jeffrey Garboe and Wayne Johnson
observed a 1988 Mercury Marquis without a functioning tag
light. The officers initiated a traffic stop based on the absence
of the tag light. Prior to approaching the car, they conducted a
records check that indicated the car's temporary license tags had
been reported stolen from Fairfax County, Virginia. The
officers arrested the driver for the stolen tag offense. When the
driver was unable to produce a registration or a driver's license,
the officers conducted a further records check that indicated that
his driving privileges had been suspended in Virginia. The
3
officers also checked the vehicle identification number in a
computer database, and it yielded an "old listing" from Virginia,
meaning that the car had once been registered there but that it
was not currently registered. There was no report that the car
had been stolen.
After handcuffing the driver and securing him inside their
cruiser, the officers searched the passenger compartment of the
car, including the glove compartment, for documentation of
ownership. They did not find any documentation, contraband,
or evidence of criminal activity. Nevertheless, the officers
searched the trunk, based on their prior experience of finding
"real tags" and "other identifying information about the vehicle"
there. Although the officers again did not find the "real tags" or
any identifying information, they did find a loaded .25 caliber
pistol and ammunition inside a child-sized backpack within the
trunk. The officers then transported the driver for booking,
leaving the car parked on the public street. According to Officer
Johnson, while being transported for booking the driver
indicated that the car belonged to his girlfriend. Officer Garboe
also remembered the driver making such a statement, including
that his girlfriend had purchased the car at an auction a month
before, but he somewhat inconsistently could not recall at what
point the driver made the statement. The district court did not
make a finding on when the officers received this information.
The driver of the car, Tarry M. Jackson, was indicted for
one count of unlawful possession of a firearm and ammunition
in violation of 18 U.S.C. § 922(g) (2000). The district court
denied his motion to suppress the evidence seized from the car
trunk. While noting that this case was "a pretty close call" and
that the officers' testimony about why they searched the trunk
was "confused," the district court concluded that "there was a
fair probability that a search of the trunk and the backpack
would produce evidence related to Jackson's use of a stolen tag
4
perhaps the `real' tags or information indicating that Jackson
was not the owner or authorized user of the vehicle." The
district court acknowledged that " t he vehicle had not been
reported stolen," but observed that "the information available to
the officers did not establish that it was not stolen." Jackson
then conditionally pled guilty to the unlawful possession charge,
preserving his right to appeal the denial of the suppression
motion. He was sentenced to twenty-one months of
incarceration, three years of supervised release, and a special
assessment, and he now appeals.
II.
The Fourth Amendment provides, "The right of the people
to be secure in their . . . effects, against unreasonable searches
and seizures, shall not be violated." In most instances, searches
must be supported by a warrant obtainable upon a showing of
probable cause. See, e.g., California v. Carney, 471 U.S. 386,
390-91 (1985); Mincey v. Arizona, 437 U.S. 385, 390 (1978).
"It remains a cardinal principle that searches conducted outside
the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment subject only to a few specifically established and
well-delineated exceptions." California v. Acevedo, 500 U.S.
565, 580 (1991) (internal quotation marks omitted).
One exception allows the police to search a vehicle's
passenger compartment, including the glove compartment,
incident to the lawful arrest of the vehicle's occupant. New York
v. Belton, 453 U.S. 454, 460 (1981); see also Thornton v. United
States, 541 U.S. 615 (2004). The rationale behind the exception
is that "articles inside the relatively narrow compass of the
passenger compartment of an automobile are in fact generally,
even if not inevitably, within `the area into which an arrestee
might reach in order to grab a weapon or evidentiary ite m .'"
Belton, 453 U.S. at 460 (quoting Chimel v. California, 395 U.S.
5
752, 763 (1969)) (alteration in original). The officers conducted
a search of the passenger compartment, and Jackson raises no
objection to that search. Jackson's arrest for traffic violations
and stolen tags, however, did not automatically permit the
officers to search the car's trunk. See id. at 461 n.4; see also
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). Rather,
although a search warrant was not required, the officers could
constitutionally search the trunk (and the containers therein)
only if they had probable cause to believe that the trunk
contained contraband or evidence of a crime. See Acevedo, 500
U.S. at 579-80.
Probable cause is synonymous with "fair probability,"
Gates, 462 U.S. at 238, and it is an objective standard requiring
an analysis of the totality of the circumstances and the facts
known to the officers at the time of the search, Ornelas, 517
U.S. at 695-96; Gates, 462 U.S. at 230-31; cf. United States v.
Arvizu, 534 U.S. 266, 274 (2002). "Subjective intentions play
no role in ordinary, probable-cause Fourth Amendment
analysis," Whren v. United States, 517 U.S. 806, 813 (1996), and
the officers' "actual motives for conducting the search are not
relevant as long as their actions were objectively reasonable."
United States v. (Rocky Lee) Brown, 334 F.3d 1161, 1172 n.8
(D.C. Cir. 2003) (quoting United States v. Christian, 187 F.3d
663, 670 (D.C. Cir. 1999)) (internal quotation marks omitted);
see also Devenpeck v. Alford, 125 S. Ct. 588, 593-94 (2004);
United States v. Holmes, 385 F.3d 786, 790 (D.C. Cir. 2004).
The court has recognized that "the discovery of contraband in
the passenger compartment of a car is a factor that strongly
supports the lawfulness of a trunk search." (Rocky Lee) Brown,
334 F.3d at 1173. And so long as probable cause exists to
search the trunk, police officers may also search any of the
trunk's contents "that may conceal the object of the search."
United States v. Ross, 456 U.S. 798, 825 (1982); see also
Wyoming v. Houghton, 526 U.S. 295, 300-02 (1999).
6
Both in the district court and in this court upon de novo
review, "the burden is on those seeking the exemption from the
warrant requirement to show the need for it." United States v.
Jeffers, 342 U.S. 48, 51 (1951); see also Chimel, 395 U.S. at
762; In Re Sealed Case, 153 F.3d 759, 764 (D.C. Cir. 1998). In
this instance, it is the government's burden to demonstrate that
there was a fair probability that the car trunk would contain
contraband or evidence of a crime. Because the totality of the
circumstances known to the officers at the time of the search of
the car trunk, including that the driver likely had committed
several traffic violations and had received stolen property, do
not support a determination of probable cause, the government
has not carried its burden.
According to the government, at the time of the search of
the car trunk, the officers had probable cause to believe that the
driver had committed several offenses: three traffic violations
for which he received citations - driving with a suspended
license, D.C. CODE ANN. § 50-1403.01 (2001), operating an
unregistered motor vehicle, id. § 50-1501.04(a)(1)(A), driving
without required vehicle identification tags, id. § 50-
1501.04(a)(1)(B) - and two criminal offenses receiving stolen
property (the stolen tags), id. § 22-3232, and unauthorized use
of a motor vehicle, id. § 22-3215. Therefore, the government
maintains, the search of the trunk was objectively reasonable
because the officers had probable cause to believe that they
would find "additional contraband, such as one or more
additional stolen tags" in the trunk, Br. of Appellee at 14, or that
"further evidence concerning this range of probable criminal
activity might well have been concealed in the trunk of the car,"
id. at 13. The government does not rely expressly on the district
court's determination that the search was permissible based on
the fair probability of finding the car's "real tags," but,
consistent with the district court's ruling, it does maintain that
the officers had probable cause to search for documentation of
7
ownership, assuming, as it does, there was probable cause to
believe that the driver was an unauthorized user of the car.
The government's first justification that the officers had
probable cause to search for contraband is readily dismissed.
There can be no serious argument that the existence of stolen
tags affixed to a car gives rise to probable cause to believe that
additional contraband, particularly additional stolen tags, would
be in the car trunk. Contrary to the government's contention,
this case is not similar to (Monte) Brown, 374 F.3d 1326, where
a fraudulent credit card, personal check, and driver's licenses
found in a vehicle's passenger compartment gave rise to
probable cause to believe that items fraudulently obtained would
be found in the trunk. In so holding, the court determined that
the evidence in the passenger compartment led a "`prudent,
reasonable, cautious police officer' to believe that there was a
reasonable likelihood the trunk contained contraband." Id. at
1328 (quoting Davis, 458 F.2d at 821). This was so, the court
explained, because of the significant correlation between what
was found in the passenger compartment indicating a desire to
engage in fraudulent transactions and the likely fruits of acting
on that desire that could be in the trunk. Here, on the other
hand, finding stolen tags affixed to the car provides no similar
correlation that items related to the use of the stolen tags would
be located in the trunk. In fact, it is difficult to conceive of what
contraband would be associated with stolen tags, wherever
found, that is of a nature similar to fraudulent documents and the
resulting fraudulent purchases. Stolen tags affixed to a car are
an end in and of themselves, and they do not point to related
contraband that may be present in the trunk.
This search is also easily distinguishable from the searches
found to be permissible in (Rocky Lee) Brown, 334 F.3d 1161,
and United States v. Turner, 119 F.3d 18 (D.C. Cir. 1997). In
(Rocky Lee) Brown, the court relied on, among other things, the
8
empirical connection between guns discovered in a car's
passenger compartment and the presence of other contraband in
the trunk. 334 F.3d at 1171 (citing cases). Similarly, in Turner,
the court relied on the established connection between drugs in
the passenger compartment and the presence of additional drugs
in the trunk. 119 F.3d at 20-21 (citing cases). In the instant
case, there is no similar established connection between stolen
tags displayed on a vehicle and additional contraband. Nor does
the presence of displayed stolen tags suggest a fair probability
that there is an additional stolen tag(s) in the trunk, especially
where, as here, Officer Garboe testified at the suppression
hearing that the car contained both front and back tags and
therefore was not missing any tags.
As to the second justification for searching the trunk, the
government is unable to explain what further evidence
pertaining to the driver's probable criminal activity, viewed
cumulatively, would be located there. It is entirely implausible
that the trunk would contain additional evidence to support the
charges of driving on a suspended license, operating an
unregistered vehicle, and driving without required vehicle
identification tags. Similarly, the charge of receiving stolen
property for the stolen tags did not necessitate a search of the
trunk because evidence of the offense was displayed on the car
and, as noted, there was not probable cause to believe that the
trunk contained additional, related contraband. In fact, at the
suppression hearing, Officer Garboe acknowledged that prior to
the search of the trunk he had all of the evidence that he needed
to arrest the driver for the above offenses and to impound the car
based on the records check and the visual inspection of the car.
Our analysis thus is consistent with Knowles v. Iowa, 525 U.S.
113, 118 (1998), where the Supreme Court declined to extend
the "bright-line rule" for the search-incident-to-arrest exception
and reversed the denial of a motion to suppress evidence found
in a car's passenger compartment, where the police, having
9
"stopped a car for speeding and issued a citation to the driver,
had all the evidence necessary to prosecute that offense."
Turning to the officers' professed need to search the trunk
for evidence of ownership, the district court justified the search
on the grounds that "the information available to the officers
did not establish that the car was not stolen." The lack of
evidence indicating that the car was stolen cuts against, rather
than supports, a finding of probable cause to search the trunk
because the result would authorize officers to search a vehicle
anytime it is unregistered, a proposition the government does not
advance. The officers must have probable cause to believe that
documentation demonstrating that the driver was not authorized
to drive the car would be in the trunk; searching the trunk for
documentation establishing or confirming that the driver
properly possessed the car would not constitute contraband or
evidence of a crime as is required under the probable cause
standard. See Acevedo, 500 U.S. at 579-80. But that is exactly
what the officers did here.
The officers' computer records checks did not indicate that
the car was stolen, nor did the records checks indicate to whom
the car was formerly registered. Although our dissenting
colleague characterizes the result of the records checks as
"unusual," Dissenting Op. at 2, the result was simply an "old
listing" that, for whatever reason, did not include the former
registrant's name; the record does not suggest that such a result
was suspicious. Similarly, the search of the passenger
compartment did not reveal any evidence that the driver was an
unauthorized user of the car. For reasons already discussed,
considered commutatively, other circumstances that the officers
encountered a driver with a suspended license driving late at
night with a broken tag light and without a registration do not
affect the probability that the driver was an unauthorized user.
Otherwise, borrowing a friend's car becomes a very risky
10
undertaking. This leaves the stolen tags as the critical feature of
this traffic stop.
Under the circumstances, we can conceive of only three
reasons of varying likelihood why stolen tags would be on the
car, and the government has not suggested any others. First,
stolen tags may be placed on an otherwise lawfully used car
without tags to give the appearance of legitimate tags and
therefore to reduce the risk that the police will initiate a traffic
stop for lack of tags. Second, stolen tags may be used to replace
expired tags on an otherwise lawfully used vehicle, again in the
hope of avoiding immediate detection. The lack of registration
and the absence of a report that the car was stolen are consistent
with these first two rationales, which suggest that the driver was
an authorized user of the car. Third, stolen tags may be used to
conceal the fact that a vehicle is stolen by replacing the stolen
vehicle's "real tags." However, as Jackson's counsel pointed
out during oral argument, the government has not demonstrated
a significant correlation between the presence of stolen tags and
the vehicle itself being stolen, and a case that our dissenting
colleague cites, United States v. Barlow, 41 F.3d 935, 939 (5th
Cir. 1994), illustrates the government's problem: using stolen
tags to obscure the fact that a vehicle is stolen at best may
momentarily delay police discovery that the car is stolen while
a records check is made of the car's tags, for in Barlow, the
officer determined through a records check that the vehicle
possessed stolen tags before determining that the vehicle itself
was stolen. Because the officers here were confronted with
three possible explanations for the presence of the stolen tags on
the car, two of which suggested authorized use and were
consistent with the lack of registration and the absence of a
report that the car was stolen, and only one of which supported
an inference of unauthorized use, the officers lacked probable
cause to search the trunk for documentation that the driver was
an unauthorized user of the car.
11
While the existence of probable cause does not depend on
the elimination of all innocent explanations for a situation,
Gates, 462 U.S. at 243 n.13, our dissenting colleague, although
acknowledging the values underlying the Fourth Amendment,
see Dissenting Op. at 9, posits the most incriminating
interpretation of the circumstances, as though the existence of
countervailing probabilities was irrelevant. Were that the law,
then the government's burden would be considerably eased, for
the particular circumstances causing the police to make a traffic
stop could often be viewed most negatively without regard to a
citizen's Fourth Amendment protections. The Fourth
Amendment requires a different analysis, as the concurring
opinion of Judge Edwards makes clear. See Concurring Op. at
1, 5. That the Fourth Amendment places a heavy burden on the
government is apparent from our car-trunk search cases, which
carefully articulated the substantiality of the connection between
information known to the officers and the likelihood of
contraband in the car trunk. See, e.g., (Monte) Brown, 374 F.3d
at 1328-29; (Rocky Lee) Brown, 334 F.3d at 1171. Here the
government attempts to elide that burden by ignoring the
explanations indicating authorized use and instead hastily
asserting that there was a fair probability that Jackson was an
unauthorized user of the car.
Our dissenting colleague emphasizes that Officer Garboe
also testified that on six or seven occasions he had encountered
vehicles with stolen tags that had "real tags" or other identifying
information in the trunk, see Dissenting Op. at 2, but the
government on appeal does not embrace the aspect of the district
court's ruling that justified the search of the trunk on the
possibility of finding "real tags." There are multiple sensible
reasons for the government's approach that, consequently,
undercut the dissent's position. Even if there was probable
cause to believe that the trunk would contain the car's expired
"real tags," these tags, like a tool kit, are neither contraband nor
12
evidence of a crime because there is nothing illegal about having
such tags in the trunk of an unregistered car. In overlooking this
point, our dissenting colleague, see Dissenting Op. at 3, posits
an evidentiary inference based on finding "real tags" in the trunk
that is irrelevant in the absence of probable cause to believe that
the trunk contained contraband or evidence of a crime. Further,
the record does not indicate that the car's expired "real tags"
would provide the officers with any additional information
regarding the ownership of the car because a records check
based on the vehicle identification number indicated only an
"old listing." In any event, even if "real tags" or identifying
information could in some instances constitute contraband or
evidence of a crime, the officer's prior experience of finding
such information in a vehicle trunk, while relevant, see (Monte)
Brown, 374 F.3d at 1328, is unhelpful here because his
testimony is devoid of the critical circumstances of those
searches, including whether the identifying information revealed
that the vehicle was stolen. Without this essential detail, it
cannot be said that Officer Garboe's past experience revealed
that trunks of vehicles with stolen tags often contain contraband
or evidence of a crime in the form of identifying information, as
opposed merely to containing ownership information confirming
that the driver is an authorized user.
The government's difficulty in demonstrating why the
officers' experience is pertinent here, and in explaining why the
presence of expired "real tags" in the trunk is at all relevant to
the probable-cause inquiry, may be due in part to what the
district court characterized as the officers' confusion about why
they searched the trunk and to the changing testimony of Officer
Garboe. Officer Garboe had testified before the grand jury that
only one stolen tag was on the car, and the government
accordingly argued in opposing Jackson's motion to suppress
that the officers had probable cause to believe the other stolen
tag or the "real tags" might be in the car trunk. Indeed, the
13
district court, in denying the motion to suppress, continued to
refer to Jackson's use of "a stolen tag." By the time Officer
Garboe testified at the suppression hearing, however, he
acknowledged there were stolen tags on both the front and back
of the car, thus eliminating a strong strain of the government's
argument.
In searching the trunk, the Fourth Amendment makes clear
that the officers stopped their investigation too soon. While the
fact that a car has stolen tags may, in some instances, suggest
that the car itself is stolen and therefore may provide probable
cause to search for documentation of ownership, no such
inference could be drawn here. Instead of establishing probable
cause and justifying a search of the trunk, the lack of
information about the driver's authority to use the car and the
ownership of the car should have served to prompt further
inquiry. See Bigford v. Taylor, 834 F.2d 1213, 1218-19 (5th
Cir. 1988); cf. United States v. Mayo, 394 F.3d 1271, 1276 (9th
Cir. 2005). Our dissenting colleague conveniently ignores that
nothing in the record indicates that, at the time the officers
searched the car, the driver, who was secured inside the cruiser
in handcuffs, had reason to believe that he was suspected of
being an unauthorized user of the car; thus he had no reason to
volunteer an explanation for his use of the car. The cases cited
by the government illustrate that a prudent, cautious, and
experienced officer would seek information from the driver
precisely because the driver's responses to police inquiries can
clarify the situation and may provide probable cause for a
further search of a vehicle. See, e.g., United States v. Maher,
919 F.2d 1482 (10th Cir. 1990); United States v. Owens, 346
F.2d 329 (7th Cir. 1965). Had the officers, for example,
inquired of the driver about the ownership of the car and how he
came to be driving it, then based on his answers and demeanor
they may have been able to establish probable cause to believe
contraband or evidence of a crime was in the trunk, or the
14
driver's response could have confirmed the lack of probable
cause. And, contrary to the view of our dissenting colleague,
see Dissenting Op. at 7-8, the officers' questions would not
have been futile, as they had "ready means" of verifying
ownership of the car: they could have called the purported
owner and had her come to the scene with proof, much like
Officer Garboe testified he does upon finding verified proof of
ownership in a vehicle.
This is not a case where the officers inquired of the driver
about who owned the car, and the driver was unable to provide
a reasonable or consistent explanation. Officer Johnson
testified that Jackson did identify the owner, but only while he
was being driven to the police station after the car trunk had
been searched; Officer Garboe confirmed that fact and while he
was uncertain about when Jackson identified the owner, he
never suggested the identification Jackson provided was
unverifiable. Nor is this a case where ownership documents in
the passenger compartment were inconsistent with the driver's
explanation for being in possession of the car. Rather, the
ambiguity of the circumstances presented the officers, like the
officers in the cases on which the government relies, with the
need to continue their investigation. While courts are not to
dictate proper investigative techniques for law enforcement
officers, see United States v. Montoya de Hernandez, 473 U.S.
531, 542 (1985), and we do not presume to identify "preferred
investigative procedures" here, Dissenting Op. at 9, those cases
suggest that the officers could have continued their investigation
here by asking the driver a few questions to determine whether
it would be reasonable to conclude that documentation of the
driver's unauthorized use of the car would be in the trunk.
Instead, lacking any such indication that the driver was an
unauthorized user of the car and lacking any documentation in
the passenger compartment suggesting that he did not have
authorization, the officers nonetheless proceeded to search the
15
trunk.
This also is not a case where the officers were faced with
an uncooperative or non-communicative person and therefore
were unable to obtain even basic information regarding
ownership or identity. Cf. Hiibel v. Sixth Judicial Dist. Court,
542 U.S. 177 (2004). Rather, the officers testified that the
driver did not resist in any way, that he was cooperative, and
that he provided his name and date of birth upon request. His
interactions with the officers indicate that he was lucid. Nor
was this a fast-moving, quickly evolving situation where the
officers were forced to process the facts before them rapidly and
to make a hasty decision regarding the search of the trunk. Cf.
Graham v. Connor, 490 U.S. 386, 396-97 (1989). To the
contrary, at the time the officers opted to search the trunk, they
had secured the driver and spent additional minutes searching
the passenger compartment. The circumstances did not indicate
that the officers were concerned about their personal safety at
the time they searched the trunk, cf. Belton, 453 U.S. at 460, nor
that they had reason to search the trunk in order to preserve
evidence of a crime, cf. Schmerber v. California, 384 U.S. 757,
770-71 (1966), much less to remove dangerous contraband, see
Cady v. Dombrowski, 413 U.S. 433, 447-48 (1973). Finally,
there were no circumstances from which the officers could
imply that the driver had consented to the search of the trunk,
and the officers did not testify that he had, much less that they
ever had asked for his consent.
Instead, the conduct of the officers demonstrated a lack of
appreciation for the distinction between a permissible search of
the passenger compartment incident to a lawful arrest, see
Belton, 453 U.S. at 460, and an unconstitutional search of a car
trunk in the absence of probable cause, see id. at 460 n.4;
Acevedo, 500 U.S. at 579-80. The exception to the warrant
requirement imposes a duty on law enforcement officers to
16
gather sufficient evidence for a determination of probable cause.
Id. Otherwise, the exception for searches of passenger
compartments incident to arrest would become an exception for
car trunks as well, a proposition the Supreme Court has not
endorsed, cf. Knowles, 525 U.S. at 118, and that is inconsistent
with the Court's rationale for the passenger-compartment
exception, see Belton, 453 U.S. at 460. Although Officer
Garboe testified that he and his partner desired to find
documentation of ownership so as to not have to leave the car
parked on the public street, in the absence of probable cause to
search the car trunk for documentation that the driver is an
unauthorized user, the constitutional route is to impound the car,
cf. South Dakota v. Opperman, 428 U.S. 364 (1976), or, as the
officers did here, to leave it on the public street.
Of course, the fact that a car has not been reported stolen is
not determinative of whether an officer has probable cause to
believe that it is stolen and to search the trunk for evidence of
ownership. Cf. United States v. Brigham, 382 F.3d 500, 509
(5th Cir. 2004). But the cases upon which the government and
our dissenting colleague rely are manifestly dissimilar to the
circumstances here. In fact, the government does not cite a
single case where a vehicle with stolen tags and without any
documentation of ownership, alone, provided probable cause to
search the trunk. In United States v. Owens, 346 F.2d 329 (7th
Cir. 1965), for instance, the police had probable cause to believe
a vehicle was stolen because the driver did not recognize the
name of the vehicle's owner. Similarly, contrary to the
dissent's characterization of United States v. Maher, 919 F.2d
1482 (10th Cir. 1990), see Dissenting Op. at 6, the driver's
inability to provide the complete name and address of the
person whom he claimed sold him a trailer assisted the court in
finding probable cause to arrest the driver. But here, the
officers did not ask the driver about ownership prior to
searching the trunk and therefore could not evaluate the
17
plausibility of his explanation. Further, in Botts v. United
States, 310 A.2d 237 (D.C. 1973), the inspection sticker was
expired, and the police could not check whether the vehicle had
been reported stolen because their computer was inoperable.
Here, the officers conducted a computer records check and
determined that the car had not been reported stolen, leaving the
circumstances ambiguous and not implausibly inconsistent with
authorized use. The reliance by the government and the dissent,
see Dissenting Op. at 6-7, on isolated dicta in a footnote in
United States v. Robinson, 471 F.2d 1082, 1104 n.38 (D.C. Cir.
1972) (en banc), rev'd, 414 U.S. 218 (1973), indicating that
"some courts have held that when a car has no license plates, or
fictitious plates, and the driver cannot produce proof of
ownership, probable cause exists to believe that the car may
have been stolen," is of no moment. The court neither indicated
that it endorsed that approach nor provided any analysis of the
constitutional requirements for probable cause; moreover, here
the officers searched the car trunk for documentation of
ownership even though neither a search of the passenger
compartment nor any discussion with the driver provided an
indication that the car was stolen.
Accordingly, because the officers lacked probable cause to
search the car trunk for additional contraband, such as
additional stolen tags, other evidence concerning the driver's
probable criminal activity, or documentation that the driver was
an unauthorized user of the car, the district court erred in
denying the motion to suppress the evidence seized from the
trunk, and we reverse the judgment of conviction.
EDWARDS, Circuit Judge, concurring:
The needs of law enforcement stand in constant tension
with the Constitution's protections of the individual
against certain exercises of official power. It is
precisely the predictability of these pressures that
counsels a resolute loyalty to constitutional
safeguards. It is well to recall the words of Mr. Justice
Jackson, soon after his return from the Nuremberg
Trials:
"These Fourth Amendment rights , I protest,
are not mere second-class rights but belong in the
catalog of indispensable freedoms. Among
deprivations of rights, none is so effective in
cowing a population, crushing the spirit of the
individual and putting terror in every heart.
Uncontrolled search and seizure is one of the first
and most effective weapons in the arsenal of every
arbitrary government." Brinegar v. United States,
338 U.S. 160, 180 (Jackson, J., dissenting).
Almeida-Sanchez v. United States, 413 U.S. 266, 273-74 (1973)
(alteration in original).
* * * *
"It is a cardinal principle that searches conducted outside
the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment subject only to a few specifically established and
well-delineated exceptions." California v. Acevedo, 500 U.S.
565, 580 (1991) (internal quotation marks omitted). The
officers in this case obtained no warrant before searching the
trunk of the car Tarry Jackson was driving. The Government
invokes the so-called "automobile exception" established by the
Court in Carroll v. United States, 267 U.S. 132 (1925), which,
because of the exigency arising out of an automobile's likely
disappearance, permits warrantless searches of moving vehicles.
Although that exception relieves officers of the duty to obtain a
2
warrant, it retains the requirement that there exist "probable
cause to believe that the vehicle contain s evidence of crime."
Acevedo, 500 U.S. at 569. Accordingly, the question before us
is whether, "given all the circumstances" preceding the search,
there existed "a fair probability that contraband or evidence of
a crime would be found" in the trunk. Illinois v. Gates, 462
U.S. 213, 238 (1983) (reaffirming an objective "totality-of-the-
circumstances analysis" in probable cause determinations).
* * * *
The police officers in this case were faced with an
unlicensed driver operating a car with a broken tag light and
stolen tags. The car itself was unregistered, and a records check
revealed that it had not been reported stolen. The District Court
concluded that a fair probability existed that the officers might
find the car's "real tags" in the trunk. Wisely, the Government
does not defend this argument before us, for, as Jackson points
out, there is no reason to believe that an unregistered car would
have any legitimate tags. Br. for Appellant at 9-10. Instead, the
Government presents two arguments in support of its claim that
the facts here gave rise to probable cause to search the trunk.
Neither argument is persuasive.
First, the Government argues that the presence of stolen
tags on the car creates a fair probability that "additional
contraband, such as one or more additional stolen tags, might
well be in the trunk too." Gov't Br. at 14. This is a
preposterous contention. The fact that a car has stolen tags
affixed to it creates no good reason to believe that additional
contraband will be found in the trunk. The Government's
reliance on United States v. Rocky Brown, 334 F.3d 1161 (D.C.
Cir. 2003), and United States v. Turner, 119 F.3d 18 (D.C. Cir.
1997), is unavailing. Those cases stand only for the
unremarkable proposition that finding drugs or guns in the
passenger compartment of a car gives rise to probable cause to
search the trunk for additional contraband. Finding stolen
3
license plates affixed to a car, however, is fundamentally
different from finding drugs or guns in the passenger
compartment.
Unlike in Brown and Turner, where we noted the empirical
connection between the existence of guns and drugs in a
passenger compartment and additional contraband in the trunk,
there is no evidence before us to suggest that a person who
affixes stolen tags to a car is likely to have additional stolen tags
or related contraband in the trunk. And the Government fails to
provide any specific explanation why such an inference should
be drawn.
The Government's reliance on United States v. Monte
Brown, 374 F.3d 1326 (D.C. Cir. 2004), is similarly misplaced.
In that case, we held that a fraudulent credit card and fraudulent
driver's licenses found in the passenger compartment of a car
created a fair probability that items fraudulently purchased with
the documents would be found in the trunk. Finding stolen tags
on a car creates no similar inference that related contraband will
be located in the trunk. One is hard pressed even to imagine
what contraband could be associated with stolen tags in a
manner similar to the way in which fraudulent purchases are
associated with fraudulent credit cards and identification.
At bottom, the Government's position would require us to
accept the view that any time contraband is found in a person's
possession, a fair probability exists that additional contraband
will be found in other areas under the person's control. In other
words, the Government would have us hold that evidence
indicating that a person may have committed one crime, without
more, invariably gives rise to probable cause to believe that he
has committed others. This position is clearly untenable under
our Fourth Amendment jurisprudence.
The Government's second contention is that the stolen tags
gave the police officers reason to believe that the car was stolen,
4
creating a fair probability that evidence related to the theft
would be found in the trunk. This might be a tenable argument
in some cases, because it is not entirely implausible to assume
that people who steal cars may replace the stolen car's real tags
with stolen tags in order to conceal the true identity of the car.
In this case, however, such an inference cannot be easily drawn,
because the police officers knew that the car was unregistered
and that it had not been reported stolen.
If a car is not registered, then it has no legitimate tags. The
most reasonable inference to be drawn in this situation is that the
owner has placed stolen tags on the car to avoid being stopped
for driving without tags, while avoiding the expense attendant
to registering the car and obtaining legitimate tags. In other
words, if a car has no legitimate tags because it is unregistered,
then police officers have no good reason to assume that the
stolen tags are intended to conceal the true identity of the
vehicle. Moreover, the explanation Jackson gave to the officers
that he had borrowed the car from his girlfriend who had
recently purchased it at an auction is reasonable on its face and
comports with the inference that the stolen tags were affixed not
to conceal that the car was stolen but instead because the car had
no legitimate tags. Accordingly, considering the totality of the
circumstances including the known and undisputed facts that
the car was unregistered and had not been reported stolen the
officers lacked probable cause to search the trunk for evidence
that the car was stolen.
In short, before the officers conducted their search of the
vehicle's trunk, there was no fair probability that contraband or
evidence of a crime would be found. Therefore, the District
Court erred in holding that the police officers were engaged in
objectively reasonable law enforcement activity when they
searched the trunk of the car that Jackson was driving.
* * * *
5
There is always a temptation to turn a blind eye to invasions
of citizens' Fourth Amendment rights in the face of potentially
inculpatory evidence. Judges are not immune from the burdens
of human nature, so we are invariably tested when asked to
exclude evidence that tends to prove a defendant's guilt. "The
cost to the truth-seeking process of evidentiary exclusion
invariably is perceived more tangibly in discrete prosecutions
than is the protection of privacy values through deterrence of
future police misconduct." James v. Illinois, 493 U.S. 307, 319
(1990). But judges must resist the temptation to ignore
unconstitutional conduct by police officers, because it is our
sworn obligation to show "jealous regard for maintaining the
integrity of individual rights" and "`resist every encroachment
upon rights expressly stipulated for in the Constitution by the
declaration of rights.'" Mapp v. Ohio, 367 U.S. 643, 647 (1961)
(quoting I Annals of Cong. 439 (1789) (remarks of James
Madison)).
In applying the exclusionary rule, courts "must focus on
systemic effects . . . to ensure that individual liberty from
arbitrary or oppressive police conduct does not succumb to the
inexorable pressure to introduce all incriminating evidence, no
matter how obtained, in each and every criminal case." James,
493 U.S. at 319-20. "The occasional suppression of illegally
obtained yet probative evidence," distasteful though it may seem
in the context of a particular case, "has long been considered a
necessary cost of preserving overriding constitutional values."
Id. at 311. It is our duty to maintain the sanctity of the
constitutional right to privacy free from unreasonable
government intrusion.
ROBERTS, Circuit Judge, dissenting: The question for the
court is whether the circumstances of the stop and arrest of
Tarry Jackson presented "a fair probability that contraband or
evidence of a crime would be found" in the trunk of the car he
was driving. Illinois v. Gates, 462 U.S. 213, 238 (1983). Like
the district court, I conclude that they did, and therefore dissent.
The officers who stopped Jackson had good grounds for
believing that the car he was driving had been stolen and that
relevant evidence could be found in the trunk. It was late at
night and the tag light was out -- suggesting from the beginning
of the encounter that Jackson was attempting to obscure the
car's license plates. Once Jackson was pulled over, the officers
learned there was indeed something to hide: the temporary tags
affixed to the car had been stolen and altered to match the car's
make, model, and vehicle identification number.
Stolen tags often accompany stolen cars. See, e.g., United
States v. Rhind, 289 F.3d 690, 692 (11th Cir. 2002) (defendants
traveled in stolen car with stolen plates); United States v. Rose,
104 F.3d 1408, 1411 (1st Cir. 1997) (same); United States v.
Barlow, 41 F.3d 935, 939 & n.6 (5th Cir. 1994) (same). The
reason is obvious: by replacing the real tags with stolen tags, the
thief makes it impossible for police to identify a stolen vehicle
by sight. A stolen vehicle will normally be described by its
make, model, and license plate number. An officer cruising the
streets cannot readily identify a particular Mercury Marquis as
the stolen Mercury Marquis if the original tags have been
replaced. See Turner v. United States, 623 A.2d 1170, 1172
(D.C. 1993) (officer noting that "a lot of time if a crime was to
go down, say like a stolen vehicle, . . . license plates can easily
be switched" (alteration in original)). So the stolen tags raised
a suspicion that the car may have been stolen as well.
The officers' records check on the vehicle did nothing to
dispel this suspicion. Had Jackson been able to produce the
car's registration or had the records check indicated that it was
his car, the police would have been reasonably certain they were
dealing only with stolen tags, a broken tag light, and a driver
2
with a suspended license. But no such reassurance was forth-
coming: Jackson himself could produce no license and no proof
of registration, and the records check, which revealed only an
old listing for the vehicle, did not show Jackson as the owner.
My colleagues seem to believe that the inconclusive records
check somehow dissipated any suspicion that the car was stolen.
See Op. at 9. To the officers on the scene, however, the failure
of the records check to resolve ownership of the vehicle was
unusual. See Hr'g Tr., June 9, 2003, at 910 ("Normally if you
run a registration check having already run the operator, it'll
tell you that it comes back with an expired listing to that
operator. And that was not the case in this case.") (emphasis
added) (Officer Garboe). The fact that Jackson was not listed on
the car's last registration could reasonably have heightened the
officers' suspicion: now they were dealing not only with a car
with stolen tags, but with a car that had no recorded connection
to Jackson.
Given the cumulation of suspicious circumstances suggest-
ing the car may have been stolen, the officers, reasonably in my
view, turned their attention to the trunk. Why the trunk? One
of the officers at the scene would later testify that he had made
about ten previous vehicle stops involving stolen tags. Hr'g Tr.,
June 9, 2003, at 1314 (Officer Garboe). On six or seven of
those occasions, he had found the vehicle's real tags in the
trunk. Id. at 19; see Ornelas v. United States, 517 U.S. 690, 700
(1996) ("our cases have recognized that a police officer may
draw inferences based on his own experience in deciding
whether probable cause exists"); United States v. Brown, 374
F.3d 1326, 1328 (D.C. Cir. 2004) (" `probable cause' is evalu-
ated not only from the perspective of a `prudent man,' but also
from the particular viewpoint of the officer involved in the
3
search or seizure" (citation omitted)).1 This is not especially
surprising: the trunk is certainly a convenient place to stash the
real tags once they have been removed from the back of the
vehicle. See Brown, 374 F.3d at 1329 ("The trunks of automo-
biles store items; they also conceal them."). Real tags in the
trunk would clearly be probative evidence suggesting the car
was stolen, for the reason just noted: car thieves replace the real
tags with stolen ones to help avoid detection.
The real tags were not the only piece of evidence police
could have been looking for in the trunk. Given the ample
grounds to suspect the car was stolen, the officers certainly had
a reasonable basis for supposing that the trunk would contain
other items that might have confirmed their suspicion -- such as
identification or belongings of the real owner -- or items that
helped connect Jackson to stealing it. Such items could have
included "equipment that's used to steal a car," such as "a
crowbar, or whatever tools one uses to punch an ignition or . . .
open a locked door." See Oral Arg. Tr. at 2:20:27, 3:00:16
(Jackson's counsel acknowledging that, had the car been
reported stolen, officers might have had reason to search the
trunk for such items).
1 The majority dismisses the officer's testimony out of hand
because it "is devoid of the critical circumstances of those searches,
including whether the identifying information revealed that the vehicle
was stolen." Op. at 12. I fail to see how this undermines the rele-
vance of the officer's experience. Whatever the circumstances, the
officer noted a strong correlation between stolen tags on a vehicle and
the presence of the vehicle's real tags in the trunk. If Jackson's
attorney had thought that the surrounding circumstances of those stops
might undermine the probative value of the officer's experience, the
attorney had ample opportunity to question the officer about them on
cross-examination.
4
My colleagues offer several reasons why they believe the
officers lacked probable cause to search the trunk for evidence
that the car was stolen:
1. The concurrence contends that because the car was
unregistered, there could be no real tags or other documents for
the officers to discover in the trunk. See Conc. Op. at 2. Not so.
A vehicle's license plates do not simply disappear once its
registration lapses; many cars roam the roads bearing plates
from expired registrations. People get tickets for that all the
time, but they are usually able to show that they are the owner
listed on the expired registration. Jackson was not able to do
that, heightening the suspicion that he had no legitimate
connection to the car.
Moreover, contrary to the majority's suggestion, finding the
expired "real tags" would have provided police with additional
evidence of criminal activity. As explained, switching tags is a
common ploy of car thieves. And under the majority's own
analysis, see Op. at 10, finding the real tags would have ruled
out the possibility the stolen tags were being used only to drive
a vehicle that otherwise had no tags, making it more likely that
the vehicle had been stolen.
2. The majority doubts the rationale for replacing a stolen
vehicle's real tags with stolen tags and therefore discounts the
inference that the car might have been stolen. Op. at 10. But
lawyers learn early on that "a page of history is worth a volume
of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349
(1921) (Holmes, J.). Officer Garboe's history with stolen tags
had confirmed that they, more often than not, led to real tags in
the trunk. The reported cases confirm that criminals often use
stolen tags on stolen cars. This history is enough to support the
officers' inferring from the stolen tags and the lack of any
registration (current or expired) linking Jackson to the car that
the car might well have been stolen.
5
Moreover, replacing a stolen vehicle's original tags makes
sense: it prevents the vehicle from being readily identified as
stolen by a passing police cruiser. Of course, the tags may have
been reported stolen, and the police can check that, too. But a
busy police officer is not going to run a check on the tags of
every Mercury Marquis he passes, and people are likely to be
much less diligent about reporting stolen tags -- particularly
temporary ones -- than stolen cars.
3. The majority reasons that the officers lacked probable
cause because they "were confronted with three possible
explanations for the presence of the stolen tags on the car, two
of which suggested authorized use and were consistent with the
lack of registration and the absence of a report that the car was
stolen, and only one of which supported an inference of unau-
thorized use." Op. at 10.
Even assuming for the moment the validity of this ap-
proach, one of the majority's "possible explanations" -- that
stolen tags might be used to conceal an expired registration --
does not strike me as probable at all. Using stolen license plates
is a serious offense. See D.C. Code Ann. § 22-3232(c) (2001)
(receipt of stolen property punishable by up to 180 days in
prison if value of property is less than $250, up to seven years
if greater than $250). It is unlikely that someone would run so
great a risk merely to avoid getting stopped for an expired
registration -- a steep ticket, to be sure, but not likely to lead to
hard time.
The more serious problem is that probable cause does not
depend on eliminating other innocent (or, here, less incriminat-
ing) explanations for a suspicious set of facts. See United States
v. Gagnon, 373 F.3d 230, 236 (2d Cir. 2004) ("the fact that an
innocent explanation may be consistent with the facts as alleged
does not negate probable cause") (citation omitted); United
States v. Funches, 327 F.3d 582, 587 (7th Cir. 2003) ("the mere
existence of innocent explanations does not necessarily negate
6
probable cause"); see also Gates, 462 U.S. at 243 n.13 ("proba-
ble cause requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity . . .
and therefore, innocent behavior frequently will provide the
basis for a showing of probable cause"). Of course, considering
alternative explanations is "often helpful," Funches, 327 F.3d at
587, but the officers were not required, before searching the
trunk, to negate the possibility that the stolen tags were used
only to drive an unregistered car. This is particularly so here,
where any plausible explanation for the circumstances of
Jackson's stop -- the broken tag light, the stolen tags, Jackson's
lack of registration, and the failure of the records check to
connect Jackson with the vehicle -- suggested that Jackson was
deliberately trying to conceal unlawful activity involving the car
itself.
4. Like the majority, I see no reason why the fact that a
vehicle has not been reported stolen should preclude probable
cause. See Op. at 16. It may take time for a vehicle's owner to
learn that his car has been stolen. A car being driven at 1:00
a.m. by someone without a license and with no registration,
bearing stolen tags, may not have been reported stolen because
its owner had retired for the night and would be blissfully
unaware of his loss until he awoke the next morning. See
United States v. Brigham, 382 F.3d 500, 509 (5th Cir. 2004) (en
banc) (officer's suspicion that vehicle was stolen was reasonable
"because in his experience, the fact that a vehicle has not yet
been reported stolen does not necessarily mean that the vehicle
has not actually been stolen"); United States v. Maher, 919 F.2d
1482, 1486 (10th Cir. 1990) (probable cause to arrest suspect for
stealing trailer where "the trailer bore a stolen license plate; the
trailer was unregistered; suspect was carrying no ownership
documents for the trailer; and suspect was unable to provide a
complete name or address of the person who allegedly sold him
the trailer"); see also United States v. Robinson, 471 F.2d 1082,
1104 n.38 (D.C. Cir. 1972) (en banc) ("some courts have held
7
that when a car has no license plates, or fictitious plates, and the
driver cannot produce proof of ownership, probable cause exists
to believe that the car may have been stolen, and the officer may
. . . search the car . . . for evidence of ownership and identity").
The majority nevertheless purports to distinguish Jackson's
case on the ground that "the officers did not ask the driver about
ownership prior to searching the trunk and therefore could not
evaluate the plausibility of the driver's explanation." Op. at
1617. This accords with the majority's suggestion that the
officers might have gathered facts amounting to probable cause
if only they had "ask ed the driver a few questions" and not
"stopped their investigation too soon." Op. at 13, 14. This is a
hazardous approach to assessing probable cause.
The officers who stopped Jackson had no ready means of
verifying ownership of the vehicle at the scene. Jackson himself
had no license and no proof of registration, and the car had
stolen tags. The officers' records check not only failed to
resolve the question of ownership but raised more suspicion: the
car itself was not registered and Jackson's name was not on the
old listing. The majority suggests that the officers should have
called "the purported owner and ha d the owner come to the
scene with proof." Op. at 14. But this assumes that the officers
had nothing better to do while on night patrol than linger
roadside, tracking down exculpatory leads for suspects.2
The officers could have reasonably concluded that further
questioning would have yielded nothing more than the usual
2 Officer Garboe testified that, if police find proof of ownership
they can verify, they usually call the "registered owner" of the vehicle
to ask if he or she would "like to come and get it or . . . to have it
towed." Hr'g Tr. at 62. This is very different from the majority's
suggestion that police could verify ownership by waiting around for
a suspect's girlfriend to meet them on a District street at one o'clock
in the morning. See Op. at 14.
8
story any suspect in Jackson's situation would be expected to
deliver. See Williams ex rel. Allen v. Cambridge Bd. of Educ.,
370 F.3d 630, 637 (6th Cir. 2004) ("law enforcement is under no
obligation to give any credence to a suspect's story . . . nor
should a plausible explanation in any sense require the officer to
forego arrest pending further investigation if the facts as initially
discovered provide probable cause" (internal quotation marks
omitted)). The best Jackson could do was tell the officers -- as
he did, at some point -- that the car belonged to his girlfriend.3
Sometimes a car being driven by an unlicensed driver, with no
registration and stolen tags, really does belong to the driver's
friend, and sometimes dogs do eat homework, but in neither case
is it reasonable to insist on checking out the story before taking
other appropriate action. Even if Jackson had provided contact
information for his girlfriend in response to inquiries from the
officers, and even if the officers had been able to reach the
girlfriend and she were responsive to their questions, I cannot
see any conceivable value in the over-the-phone testimony of a
suspect's apparent girlfriend -- someone unknown to the
officers, whose number was given to them by the suspect
himself -- that an unregistered car with stolen tags, driven by an
unlicensed driver, was indeed hers and was being used with her
permission.
3 Because Jackson did not argue below that the police should have
conducted a more elaborate investigation, the district court did not
make any factual finding as to precisely when the suspect told officers
that the car belonged to his girlfriend. Compare Hr'g Tr., June 9,
2003, at 62 ("I don't recall exactly when the conversation took place
in which he . . . informed us that his girlfriend had purchased the
vehicle at an auction.") (redirect of Officer Garboe) with id. at 70 (Q.
"Did you have any information regarding this defendant or anyone
else's possible ownership of this particular vehicle prior to the
search?" A. "No.") (Officer Johnson).
9
Finally, my colleagues' insistence that police should have
further questioned Jackson amounts to prescribing preferred
investigative procedures for law enforcement. We have neither
the authority nor the expertise for such an enterprise. See United
States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985)
("creative judges engaged in post hoc evaluations of police
conduct can almost always imagine some alternative means by
which the objectives of the police might have been accom-
plished" (internal quotation marks omitted)). In the end, I would
leave the judgment as to what lines of inquiry ought to be
pursued to the officer himself, and judge probable cause on the
facts as they are, rather than on what they might have been had
the officer pursued a different course.
* * *
I wholeheartedly subscribe to the sentiments expressed in
the concurring opinion about the Fourth Amendment's place
among our most prized freedoms. See Conc. Op. at 1, 5. But
sentiments do not decide cases; facts and the law do. There is
no dispute here on the law: if the officers had probable cause,
they did not need a warrant; if they did not have probable cause,
no warrant would issue in any event. As for the facts, the
officers encountered at 1:00 a.m. an unlicensed driver operating
an unregistered car with a broken tag light and stolen tags. The
experienced district court judge concluded -- and I agree -- that
"the circumstances were suspicious enough to amount to
probable cause to search the trunk." Memorandum Order, at 5.
Right or wrong, nothing about that determination reflected
insensitivity to constitutional values, any more than a contrary
determination would have reflected insensitivity to the needs of
law enforcement.
I respectfully dissent.
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